Citation Nr: 21005154 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 10-34 772 DATE: January 29, 2021 ORDER The rating reduction for residuals of compression fracture, T6-7 (back disability) from 20 to 10 percent, effective September 22, 2016, to July 30, 2017, was improper, and the 20 percent rating is restored. An initial 70 percent rating for mood disability with major depression is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for a back disability is remanded. FINDINGS OF FACT 1. A June 2005 rating decision assigned a 20 percent rating for the Veteran’s back disability effective February 14, 2005. 2. At the time of the reduction in October 2016, the Veteran’s back disability did not show improvement in ability to function under the ordinary conditions of life and work. 3. Throughout the appeal, the Veteran’s psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment have not been shown. 4. The Veteran’s service-connected disabilities prevent him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for restoration of a 20 percent rating for the service-connected back disability, effective September 22, 2016, to July 30, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7, 4.75-.79. 2. Throughout the appeal, the criteria for an initial 70 percent rating, but not higher, for the service-connected psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1977 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran appeared at a hearing before a Veterans Law Judge. In November 2020, the Veteran appeared at a hearing before another Veterans Law Judge. Generally, Veterans Law Judges who conduct hearings must participate in making the final determination of the claims involved. 38 U.S.C. § 7107(c); 38C.F.R. §20.707. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102(a). When a Veteran has hearings before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held. The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). During the November 2020 Board hearing, the Veterans Law Judge advised the Veteran of his right to a third hearing before a third Veterans Law Judge. The Veteran waived his right to appear at an additional hearing before a third Veterans Law Judge, who would be assigned to decide his appeal. Accordingly, there is no impediment in issuing the panel decision herein. 1. The rating reduction for a back disability from 20 to 10 percent, effective September 22, 2016, to July 30, 2017, was improper, and the 20 percent rating is restored. For ratings that have been in effect for five years or more, as the 20 percent rating for the Veteran’s back disability has been in this case, reduction is warranted when reexamination discloses sustained material improvement. See 38 C.F.R. § 3.344 (a), (b); see also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). To the extent relevant to this case, the Veteran’s back disability has been rated under Diagnostic Codes 5235 and 5242, which provide that a 10 percent rating is warranted or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months or forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 month or forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran has stated his disagreement with the reduction because he does not believe his back disability improved. Because the Board agrees, it will restore the 20 percent rating effective from September 22, 2016, to July 30, 2017. In June 2005, the RO assigned a 20 percent rating for the Veteran’s back disability, effective February 14, 2005, in light of an April 2005 VA examination report that showed pain and functional loss when lifting objects. In reducing the Veteran’s rating, the RO relied upon the results of VA examination reports dated in March 2015 and September 2016, which show forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. In this case, the Board notes that the reduction of the assigned 20 percent rating to 10 percent for the Veteran’s service-connected back disability was based, in pertinent part, upon the March 2015 and September 2016 VA examination reports. As these reports show no IVDS; forward flexion greater than 60 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees; and no muscle spasm or guarding, it does not appear he satisfies the schedular criteria for a 20 percent rating. However, the Board must find that these examination findings were not adequate for purposes of reducing the assigned rating. In pertinent part, the record, including medical treatment records, reflect the Veteran has been given physical therapy, TENs therapy, and opiate pain medication. The Court has held that in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, it appears that neither the March 2015 and September 2016 VA examination reports, nor the rating decision which effectuated the rating reduction in this case, adequately address the effect of the Veteran’s use of such medications and therapies in this case. As such, it appears these examinations do not reflect the type of improvement necessary to support a rating reduction. The Board also takes note that since the time of the March 2015 and September 2016 VA examination reports, and the rating reduction under review, the Court has issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), concerning the adequacy of VA orthopedic examinations to include the effect of pain on range of motion findings. Here, it does not appear the March 2015 and September 2016 VA examination reports are in accord with the requirements outlined in Sharp. In view of the aforementioned deficiencies in the March 2015 and September 2016 VA examination reports, the Board must find that the record does not demonstrate the Veteran’s service-connected back disability had the type of actual improvement in his ability to function under the ordinary conditions of life and work as to warrant a rating reduction. Thus, the 20 percent rating must be restored, effective September 22, 2016, to July 30, 2017. 2. An initial 70 percent rating for mood disability with major depression is granted. The Veteran’s psychiatric disorder is currently rated 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434. According to 38 C.F.R. § 4.126 (a), a mental disorder shall be rated “based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination.” 38 C.F.R. § 4.126 (a). Under Diagnostic Code 9434, the next higher rating, a 70 percent rating, is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if evidence shows total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). The Board finds that throughout the appeal, the Veteran’s service-connected psychiatric disorder has been productive of occupational and social impairment in most areas due to signs and symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, disturbances of mood and motivation, difficulty establishing and maintaining affective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain affective relationships, and suicidal ideation. Despite the June 2010 and August 2017 VA examiners’ opinion that the Veteran’s psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity, the Board finds that the Veteran’s symptoms, chiefly his suicidal ideation, are suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board’s determination is in line with the opinions of the Veteran’s treating psychiatrist (Dr. B., March 2011) and several VA examiners (September 2008, March 2015, July 2016) that he is unemployable largely due to his service-connected psychiatric disorder. Indeed, the opinion provided by the Veteran’s treating psychiatrist is highly probative due to his familiarity with the Veteran’s pertinent medical history. See D’Aries v. Peake, 22 Vet. App. 97, 108 (2008). During the November 2020 Board hearing, the Veteran credibly testified that he has experienced recurrent thoughts of suicidal ideation since approximately 2010. Additionally, the earliest VA psychiatric examination of record, dated September 2008, shows that the Veteran reported having put a gun to his head on two separate occasions. Not only does this report corroborate the Veteran’s testimony of suicidal ideation since 2010, but it shows the presence of suicidal ideation throughout the pendency of the appeal, that is, from at least July 7, 2008. The evidence, namely VA examination reports and private treatment records, shows that the Veteran has also experienced recurrent depression, loss of interested, feelings of worthlessness, extreme fatigue, and irritability. Additionally, evidence that the Veteran’s most recent part-time employment at a golf course was terminated due to inability to complete tasks (Statement, January 20, 2021) and conflicts with co-workers and customers (VA examination June 2010). For these reasons, the Board finds that an initial 70 percent rating is warranted for the Veteran’s service-connected psychiatric disorder. It is undisputed that the Veteran’s disorder results in serious occupational impairment; however, as a 100 percent rating for a psychiatric disorder requires both total occupational and social impairment, entitlement to the next higher rating turns on the presence of total social impairment. Here, the lay and medical evidence of record, to include several statements from the Veteran, shows that the Veteran has maintained relationships with his wife, brother, son, and friends throughout the pendency of the appeal. See Dependent Questionnaire (November 2017); VA examinations (March 2015, September 2008); VA treatment record (April 11, 2013). In light of such relationships, the Board cannot find that he experiences total social impairment. Moreover, to reach a finding of total social impairment, the evidence would need to show that the Veteran did not have and close relationships, such as that he shares with his wife, brother, son, and others. Therefore, because the evidence shows that the Veteran’s service-connected psychiatric disorder does not result in total social impairment, an initial 70 percent rating, but not higher, is warranted. 3. A TDIU is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the schedular criteria have been satisfied throughout the appeal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Historically, following separation from service, the Veteran worked fulltime for the postal service until 2005, when he retired due to an injury. See, e.g., VA examination (September 2008). In 2006, the Veteran sought private psychiatric treatment and by September 2008, a VA examiner opined that he was unemployable due to severe depression. Nevertheless, he attempted to follow part-time employment at a golf course. While the precise dates of such employment are unclear, the statements from the Veteran’s former employers clearly show that he was employed at a golf course from June 2012 to September 2019, working 15 to 25 hours per week, and that he earned less than $3,600.00 during the 12-month period preceding his last date of employment. See Employment Questionnaires (January 20, 2021; January 21, 2021). The evidence also shows that he was briefly employed at a golf course sometime between 2005 and June 2010 but was terminated following an argument with a golfer. See VA examination (June 2010). A VA examiner attributed this termination to the Veteran’s service-connected psychiatric disorder. Id. The evidence further shows that the Veteran’s highest level of education is two years of college. See VA Form 8940 (December 2020). The Board finds that the Veteran’s service-connected disabilities manifested with signs and symptoms severe enough to preclude him from reasonably securing or maintaining substantially gainful employment consistent with is education and occupational experience. In this regard, the Veteran’s brief employment during the period between 2005 and 2010 shows that he was unable to maintain substantially gainful employment due to physical impairments stemming from his service-connected back disability and symptoms, namely disturbances in mood and motivation and suicidal ideation, stemming from his service-connected psychiatric disorder. See VA examination (June 2010) (showing that the Veteran was terminated, in part, due to an altercation with a golfer). Additionally, the Board finds that the Veteran’s part-time employment from June 2012 to September 2019 amounted to marginal employment, falling short of substantially gainful employment. In this regard, statements from his employer, which constitute the most credible evidence pertaining his income during this period, indicate that he earned less than $3,600.00 during his last 12 months on the job. See Employment Questionnaires (January 20, 2021; January 21, 2021). The Board further finds employment consistent with the Veteran’s 20-year experience as a postal worker requires the ability to perform bend, lift, walk, and sit for prolonged periods of time. Indeed, service-connected pain and functional limitations directly preclude the Veteran from performing such physically demanding tasks. Additionally, the Veteran’s employment at golf courses is akin to clerical work, requires often regularly interacting with the public and coworkers. The evidence clearly shows that the Veteran’s service-connected psychiatric disorder results in disturbance in mood and motivation as well as irritability that preclude him from engaging in interpersonal activities. Moreover, despite his periodic attempts at part-time work, the Board finds that when coupled with functional impairments stemming from his service-connected back disability, the Veteran’s serious psychiatric impairments, chiefly his suicidal ideation and disturbances in mood and motivation, have likely precluded him from maintaining substantially gainful employment. Indeed, as detailed above, the Veteran’s treating psychiatrist and several VA mental health experts have agreed that the Veteran’s service-connected disabilities preclude substantially gainful employment. After resolving any doubt in the Veteran’s favor, the Board finds that the evidence sufficiently shows that the Veteran’s service-connected disabilities preclude substantial gainful employment. See Geib, 733 F.3d at 1357. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for a back disability is remanded. With regard to the service-connected back disability, a new VA examination is needed to address functional limitations during flare-ups. Initially, the August 2017 VA examination report indicates that the Veteran does not experience. However, during the November 2020 Board hearing, the Veteran testified that throughout the appeal, he has experienced incapacitating episodes of back symptoms, to include spasms, approximately 30 times yearly. The Board finds that such incapacitating symptom spikes are tantamount to “flare-ups.” Accordingly, reexamination is needed to solicit information needed to estimate functional loss during flare-ups. See Sharp, 29 Vet. App. at 26 . Such information is necessary to adequately understand the severity of the Veteran’s service-connected back disability. Id. VA examination is also needed to address whether the Veteran’s testimony regarding pain that radiates into his left lower extremity evinces neurological abnormality associated with his service-connected back disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination (in person or via telemedicine) by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should address the Veteran’s report of (i) incapacitating episodes of back symptoms, to include spasms, approximately 30 times yearly and (ii) pain radiating from his back into his left lower extremity. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.